On March 18, 2015, the Court of Appeals of the Second Circuit held that the Communications Decency Act of 1996 shields defendant GoDaddy.com, LLC from defamation liability based upon allegations that false statements about the plaintiffs in a Union newsletter were published on a website hosted on GoDaddy’s servers. The Court affirmed the judgment of the United States District Court for the Southern District of New York in favor of GoDaddy on its Federal Rule 12(b)(6) motion to dismiss, which also dismissed labor law claims against the Teamsters Union Local 456. In pertinent part, the Court held:

Accepting as true all of the allegations in the complaint, GoDaddy is immune from the Riccis’ defamation claims under a provision of the Communications Decency Act of 1996: “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Preemption is express: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

Ricci v. Teamsters Union Local 456, 2015 WL 1214476, at *5.

The Court noted that it has “never construed the immunity provisions of the Communications Decency Act, but other courts have applied the statute to a growing list of internet-based service providers” including GoDaddy. Id. at *7 (citing, e.g., Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014); Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008); Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 672 (7th Cir. 2008)). Specifically, the Court held:

“None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. . . . Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.” … In short, a plaintiff defamed on the internet can sue the original speaker, but typically “cannot sue the messenger.”

Id. at *6-7 (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997) and Craigslist 519 F.3d at 672).

On March 16, 2015, the U.S. District Court for the Southern District of California held that LivingSocial may be liable to a former vendor-partner for state trademark, false advertising, and unlawful business practice claims stemming from its participatory role in creating a confusing marketing promotion that harmed its former vendor-partner. The campaign caused consumers to erroneously believe that poor performance by a third party was actually attributable to plaintiffs’ business. This led to unwarranted, disparaging reviews about plaintiffs’ business online. LivingSocial moved to dismiss plaintiffs’ state trademark, false advertising, and unlawful business practice claims on the ground that it was entitled to immunity under the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230(c)(1) as a provider of interactive computer services. CDA § 230 affords interactive computer service providers immunity from liability for allegedly improper and illegal content created by third parties. The Court rejected this argument, drawing a “reasonable inference” that LivingSocial was responsible for creating or developing content on its website – thus jeopardizing CDA § 230 immunity. LivingSocial also moved to dismiss plaintiffs’ federal trademark and false advertising claims on the ground that it was entitled to the Lanham Act’s safe harbor provision for online advertisers, which protects innocent infringers. However, the Court found no indication LivingSocial was entitled to the innocent infringer defense, since LivingSocial was aware of plaintiffs’ existence from a prior business relationship with plaintiffs. The Court dismissed the federal trademark claim, without prejudice, on procedural grounds.